JUDGMENT
Modi, J.
1. This is a first appeal by defendants Ramanlal and Murlidhar against a judgment and decree of the Civil judge, Churu, dated 22-9-1951, in suit for money.
2. The plaintiff Ramgopal’s case as set out in the amended plaint was that he carried on busi-
ness as a money-lender in Moulmein (Burma) in the name of Bilas Rai Ramgopal and that the defendants who were brothers also did business there and used to borrow money from him from time to time, it was alleged by the plaintiff that he left Burma on 11-12-1941, as a result of the Second World War having broken out there, and that on 6-12-1941 a sum of Rs. 21,142/7/- remained outstanding against the defendants, and on 10-12-1941, further sums of Rs. 581/4/- and Rs. 2000/-were debited against the defendants so that in all Rs. 23,723/11/- became due from them. To this the plaintiff added a sum of Rs. 3947-5-3 as interest at the rate of 14 annas per cent, per mensem from 6-12-1941, up to the date of the suit thus bringing the total to Rs. 27,671/0/3.
It was admitted that the defendants had paid back sums amounting to Rs. 21,000/-. The plaintiff, therefore, brought a suit for the recovery of Rs. 6,671/0/3 with pending and future interest. The defendants resisted the suit. Defendant Ramanlal who described himself as residing at Churu but then living at Calcutta completely repudiated the plaintiff’s claim. He contended that he did not borrow any money from the plaintiff and that on the other hand the former had advanced a sum of Rs. 21,000/- to the plaintiff on interest at his request in order to help him to set up some kind of business in Moulmein and the defendant did so because he knew the plaintiff and had full faith in his integrity. The defendant admitted that the plaintiff left Burma for India in December 1941.
It may be pointed out that the plaintiff had brought his suit in the first instance on a balance sheet only which he had brought over from Burma with himself as he had left his account books in Burma. This provided an opportunity to the defendants to contend that it was impossible that the plaintiff should have advanced such a considerable amount without having taken any writing from the defendants. Defendant Ramanlal further questioned the jurisdiction of the Churu Court to try the suit as according to him he had never resided at Churu at any material time nor did the cause of action partly or wholly arise there. He also alleged that he had instituted a suit in the High Court at Calcutta for the recovery of Rs. 21,000/- together with interest against the plaintiff, other pleas raised by him were that the suit was bad for non-joinder of parties and that it was barred by limitation.
3. It will be convenient to state here that the other defendant Murlidhar, who was later added as a defendant on 11-6-48 by an amendment of the plaint, also denied the plaintiff’s claim and filed his written statement generally on the same line as that of his brother Ramanlal.
4. The learned District Judge, Churu, in whose Court the plaintiff had instituted his suit, dismissed it on 21-10-1946. The plaintiff took an appeal to the High Court of the former state of Bikaner where the appeal was allowed and the case remanded for further evidence and a fresh decision. This happened on 29-10-1947. It was after the remand that the plaintiff obtained permission to implead Murlidhar as defendant also and impleaded him as such. The case had in the meantime been transferred to the Civil Judge, Churu, owing to re-organization of Courts and the learned Civil Judge decreed the plaintiff’s suit against both defendants. This appeal is directed against the above judgment and decree.
5. Learned counsel for the defendant-appellants has assailed the trial Court’s decree on a number of grounds. His first contention was that the
Churu court had no jurisdiction to try the suit. His argument was that admittedly the cause of action had arisen outside the jurisdiction of the Churu Court and for that matter the Courts of the former State of Bikaner (had no jurisdiction?). As regards residence, he argued that there was no evidence to show that the defendants resided at Churu within the meaning of Section 20 of the Code of Civil Procedure, and added that the trial Court was wrong in placing the burden of proof upon the defendants on the point of jurisdiction. Learned counsel relied on — ‘Suraj Karan v. Sitaram’, AIR 1952 Raj 31 (A) in support of his argument.
We felt at the beginning that the contention of the learned counsel on this point deserved to be accepted; but on a closer consideration of the whole matter, we have, in the circumstances of the case, come to the conclusion that this contention must be overruled. It is necessary to point out in this connection that when issues were framed for the first time on 27-3-45 and when Ramanlal alone stood impleaded as defendant, no issue on the point of jurisdiction was raised at all. This is, in our opinion, a very significant omission and shows that defendant Ramanlal did not rely on his objection as to jurisdiction taken in the written statement and, therefore, did not press for any issue on that point.
It must be remembered that the trial Court had in the first instance dismissed the suit for want of proof and this is not surprising because the plaintiff had left all his books in Burma and had nothing but a balance sheet to support his case. When the High Court of Bikaner on appeal remanded the case, it is further significant that no contention was raised on behalf of defendant Bamanlal that a remand was useless and futile because the Bikaner courts had no jurisdiction over him. This again shows that Ramanlal and his legal advisers did not place any reliance on the plea of jurisdiction in their armoury of defence.
Ramanlal had examined himself by commission at Calcutta on 4-8-46 wherein he described himself as resident of Churu the exact expression
being ^^lkfdu pq: gky dydÙkk^^ He did not say a word that he had no residence in Churu at any material time and, therefore, the Churu Court had no jurisdiction. On 1-6-48 Ramanlal had also put in a Vakalatnama in which it was mentioned ^^jeuyky oYn——–vxzoky pq:dk gwa
**, which also is not without significance. It may also be pointed out that the plaintiff examined himself on 10-1-46 but not a single question was directed against him to elicit any facts showing that the Churu court had no jurisdiction over the defendant.
Be that as it may, the plaintiff amended his suit after it was ordered to be remanded by the order of the High Court of Bikaner when Murlidhar having been impleaded came into the picture. Thereafter on 16-9-1949, some more issues were added as a result of Murlidhar having been impleaded as a defendant and the material issue was as follows:
^^7&¼jo½ D;k eqnk;rk dh ldwur pq:
ugha gS blfy;s nkok ukdkfcy lek;r vnkyr gktk gS\**
6. Murlidhar had also entered his Vakalatnama on 20-11-48 in which he described himself as resident of Churu ^^pq: dk gwa^^\
It is not clear whether the issue as to jurisdiction which was raised on 16-9-49 was raised with reference to Murlidhar
only and not with respect to Ramanlal. But even assuming that the issue related to both, the burden which might have otherwise been on the plaintiff was, in our opinion, rightly placed on the defendants in the circumstances of this case. We have no doubt that the facts of — ‘AIR 1952 Raj 31 (A)’ do not bear any resemblance to the case before us and that case is, therefore, not applicable.
7. We must further point out that the defendants accepted the burden which was laid upon them by the trial court without any demur or protest and allowed the case to proceed on that basis throughout the trial. They cannot, therefore, tie allowed, when they failed to discharge their burden to turn round and urge that that burden should not have been placed upon them. Reference may be made to — ‘Bishambar Das v. Telu Ram’, AIR 1934 Lah 1019 (B). It was held in that case that when a party accepts the burden of proof. laid on him by the court below and undertakes to discharge it but fails to do so, he cannot in appeal turn round and say that he has not been fairly treated in the matter of burden of proof. We, therefore, overrule this contention.
8. We may further add that the conclusion at which we have arrived above is supported from another angle with which we may look at this case. Let us assume that Murlidhar or for that matter both Murlidhar and Ramanlal were not residents of Churu and were non-resident foreigners and, therefore, the court at Churu had no jurisdiction over them at the commencement of the suit. It is a fact, however, that both Ramanlal and Murlidhar submitted to the Jurisdiction of the Churu Court. This is established to the hilt by the course of the proceedings to the trial Court. Both Ramanlal and Murlidhar contested the suit on the merits and in fact on all conceivable grounds. Having done so, they cannot, in our judgment, be allowed to turn their faces and impeach the judgment of the trial Court on the ground of want of jurisdiction of that Court.
Reference may be made in support of this view to — ‘Harris v. Taylor’, (1915) 2 KB 580 (C). In that case the plaintiff brought an action against the defendant in the High Court of the Isle of Man for damages. The defendant was a nonresident foreigner and was served with a writ In England. The defendant then appeared conditionally and questioned the jurisdiction of the Court on the ground that he was a domicile of England. The Court dismissed the objection. The-defendant took no further part in the proceedings and the plaintiff’s suit was decreed. Subsequently, on the plaintiff bringing an action on the defendant to enforce the judgment it was held by Buckley L. J. that even though the defendant appeared only to contest that the Court had no jurisdiction over him in the High Court of the Isle of Man, this amounted to a voluntary appearance in that Court and a submission by him to the jurisdiction of that Court.
It was further observed that the doctrine applicable in such cases is that if the defendant has placed himself in a position that it becomes his duty to obey the judgment of the foreign court, then the judgment will be ‘enforceable against him in the Courts of his own country.
9. This decision has been the subject of some doubt and it has been pointed out that it creates difficulties inasmuch as it establishes that even an appearance limited to protesting the jurisdiction would be enough to attract the principle of submission. With great respect, the criticism does not appear to be illegitimate, for, when a defen-
dant merely appears to protest the jurisdiction but does nothing more whatever it would appear that it would be a contradiction in terms to say in such a case that he voluntarily submitted to the jurisdiction of the Court.
Be that as it may, it appears to us to be well settled that when the defendant appears not only to protest jurisdiction but tie also pleads to the merits, such an appearance amounts to voluntary submission on his part and his protesting the jurisdiction in such a case when he also pleads to the merits does not detract from the principle of submission in any way. See — ‘Guiard v. De Clermont & Donner’, (1914) 3 KB 145 (D) and — ‘Subramania v. Annasami’, AIR 1948 Mad 203 (E). It is true that all these cases were based on foreign judgments, but it appears to us that the same principle should be held, applicable to a case like the present as well, the fundamental principle being that a court has jurisdiction in an action over any person who has by his conduct precluded himself from objecting to the jurisdiction of the Court.
Such a case undoubtedly occurs where a person voluntarily submits to its jurisdiction. Such submission may take place in a variety of ways e.g., by a party suing as plaintiff, by his voluntarily appearing as a defendant, or by his having made it a part of an express or implied contract that if certain questions arise, he agrees to refer them for decision to the Courts of a given country. Reference may be made in support of this view to ‘Dicey’s Conflict of Laws’, Sixth Edition, p. 166, Rule 24 and the English cases citied therein. The judgment in — ‘Gaikwad Baroda State Ry. v. Habib Ullah’, AIR 1934 All 740 (F) also lends support to this view. Rachhpal Singh J. who delivered the main judgment of the Bench stated: “But the defendant not only took the plea of want of jurisdiction but also entered appearance and during the course of a protracted trial, produced evidence, cross-examined the witnesses of the opposite party and took his chance of winning the case on merits.” The learned Judge concluded by saying that it was no longer open to the defendant in the circumstances to contend that the Court had no jurisdiction to entertain and decide the suit. We may finally refer to a case of our own Court: –‘Dominion of India v. Hatoli Ram’, ILR (1952) 2 Raj 386 (G), which appears to us to have adopted the same view.
10. Applying the principle deducible from the cases cited above, we have no hesitation in holding that both defendants Ramanlal and Murli Dhar submitted themselves to the jurisdiction of the Churu Court inasmuch as they did not limit their contest to a protest as to jurisdiction only in that Court but fought the case on all points relating to the merits, led evidence, and cross-examined the plaintiff who appeared as a witness on his own side and fully took the chance of a judgment in their favour and having done all that they cannot be allowed now to disown the Churu Court and to say that it had no jurisdiction to entertain any suit against them. The result of this discussion is that we hold that the Churu Court had jurisdicton to decide the present case.
11. It was contended in the next place by learned counsel for the appellants that the suit was barred by limitation, so far as the appellant Murlldhar was concerned. The contention was that all the debts were prior to 10-12-1941 and Murlidhar had been impleaded beyond six years of that date on 11-6-48. Learned counsel relied in support of his argument on Section 22 (1) of the Limitation Act, the relevant portion whereof reads as
follows:
“(1) Where, after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.”
Now, if the date on which the appellant Murlidhar was actually brought on the record is the material date for the purpose of the commencement of the proceedings against him, the suit, so far as he is concerned, is certainly barred by time. If, on the other hand, the material date for the purpose is not the date on which he was actually impleaded but the one on which the application was made to join Murlidhar as defendant, then the suit would be within time because the application to implead Murlidhar was made by the plaintiff on 6-12-1947, which is within six years of 10-12-1941.
Having given our careful consideration to this matter, we are of opinion that the correct principle is that it is the date of the application for impleading a party, which is material, and not the date on which the party js actually brought on the record. When a person is added as a party on; an application made for the purpose, such addition must be deemed to take effect from the date of the application and not from the date of the order on the application. Reference may be made in support of this view to — S. I. Industrials Ltd. v. Narasimha’, AIR 1927 Mad 468 (H); — ‘Hassanand v. Nandiram’, AIR 1930 Bind 259 (I) and ” ‘Praful Kumar v. Gajendra Singh’, AIR 1945 Nag 57 (J).
We may further point out in this connection that the rule under Order 1, Rule 10, Civil P. C. that the proceeding as against a newly added person should be deemed to have begun only on the service of the summons upon him has been made expressly subject to Section 22 of the Limitation Act and, therefore, does not conflict with the view adopted by us. It may be that for purposes other than those of limitation, a suit may be deemed to have been instituted against a newly added defendant on the date of the service of summons, upon him; but so far as limitation is concerned, the suit must be deemed to have been instituted against him when he is made a party or where an application is made for the purpose of impleading him as a party, then with effect from the date of the application, the reason being that if any other view is taken, it must result in a party being, penalised for any delay of the Court. This contention must accordingly be overruled also.
12. Another contention put forward on behalf of the appellants was that the trial Court had fallen into error in holding that the items of Rs. 2000/- and Rs. 581-4-0 were proved to have been advanced by the plaintiff to the defendant-appellants. (His Lordship on consideration of the evidence held that the finding of the trial Court in respect of these items was correct and proceeded) :
13-14. The only question that remains to decide is whether the plaintiff is entitled to get any interest on the amount of the debt due from the defendants to the plaintiff, and if so, at what rate? It is contended before us by learned counsel for the appellants that there was no stipulation as to interest between the parties nor had’ the plaintiff established any mercantile usage in this respect, and further that no interest was chargeable as by the Burma Accrual of Interest (War Time Adjustment) Act, 11 of 1947, no interest could legally be charged on the suit debt. It was pointed out that according to that enactment,
“no interest shall accrue or be payable upon any loan or mortgage other than usufructuary mortgage made in Burma before the 5th day of May, 1942 for, or in respect of the period which falls within the 8th day of December, 1941, and the date on which the provisions of Section 7 of the Courts (Emergency Provisions) Act, 1943, cease to operate or are repealed.”
All that .has been placed before us in this connection on behalf of the appellants is a certified copy of the Burma Gazette Extraordinary dated 25-3-1947. This copy has been attested as a true copy by a seal of the Assistant Judge’s Court, Moulmein. Learned counsel for the plaintiff-respondent has argued that this was not the proper manne.’ in which to prove an Act of a foreign State. According to Section 38, Evidence Act, when the Court. has to form an opinion as to a law of any country, any statement of such law contained in a boos purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.
Again, Section 45, Evidence Act, provides that when the Court has to form an opinion upon a point of foreign law, the opinions upon that point of persons specially skilled in such foreign, law are relevant. Unfortunately, the appellants have not produced before us any satisfactory proof of what the law was in Burma as to interest in a manner approved by the Indian Evidence Act, and, therefore, we are constrained to hold that we cannot take any notice of the attested copy of the Burma Accrual of Interest (War Time Adjustment) Act, 1947, for a decision of the point under consideration, and there is nothing else which may lead us to hold that it would be illegal for the plaintiff to charge interest on the debt in question provided that it was otherwise allowable according to law.
The trial court allowed the plaintiff interest at the rate of 14 as. per cent per mensem. It was argued before us that this was the rate of interest agreed to between the parties, and this agreement has been proved by the plaintiff in his own statement. Although there is no other evidence of the alleged stipulation, we see no reason to disbelieve the statement of the plaintiff in this case when he says that the money transactions between the parties were to bear interest. Both parties were business-men, and it is usual, in our opinion, for business-men to lend money between themselves and charge the current rate of interest. We, therefore, think it just to hold that there was a stipulation as to interest in the present case.
As to what was the rate of interest which was agreed to between the parties, we are inclined to hold that this rate must be fixed at 9 per cent, per annum in all the circumstances of the case. We are supported in this view by the fact that the defendants had also claimed interest at 9 per cent, per annum with respect to the suit which they had filed against the plaintiff arising out of the suit transactions. We, therefore, hold that the rate of interest agreed to between the parties was 9 per cent, per annum. We must, however, point out that what the plaintiff has done in the present case is to charge compound interest and there is no proof on the record to show that there was any agreement between the parties to charge compound interest.
We, therefore, hold that all that the plaintiff is entitled to is to charge simple interest at the rate of 9 per cent, per annum only. The plaintiff will
accordingly be entitled to get a sum of Rs. 2973/3/9 by way of interest up to the date of suit in addition to the principal amount of 2723/11/-. The trial court has further decreed the plaintiff’s claim with pending and future interest at the rate of 6 per cent, per annum. We see no reason whatsoever to think that the trial court exercised its discretion wrongly in this respect. The conduct of the defendants througout the suit has been far from straightforward.
16. The result is that except for the modification which we have made as regards interest, as stated above, this appeal must fail and is hereby dismissed with costs.